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CBA Monday Message 28.01.19

Chair’s Update:
Chris Henley QC

SPEAKING TRUTH TO POWER CUTS:

Whatever the reasons, and whatever the fix, has anything been more emblematic of the deep and worsening crisis in the Criminal Justice System than the collapse of IT systems in courts across the country last week? Trials adjourned, evidence inaccessible, secure e-mails vanishing, wifi down, Xhibit just a blank screen, prisons beyond communication, the stuff of satire, and a high profile media story for several days (Kate Bex QC on LBC was a particular highlight). But it’s ok, it had nothing to do with a chronic lack of resources.

SERIOUS CRIME INCREASES AS PROSECUTIONS FALL SHARPLY:

The Office for National Statistics released the most recent crime statistics on Thursday; robberies are up 17% (to 80,000), homicide up 14% (to 739), public order offences up 24% (to 427,134), a 14% rise in sexual offences (to 161,162) and an 8% increase in knife crime (to 39,818). So you might reasonably expect our courts to be busier than ever. You would be wrong. The number of cases being prosecuted in the Crown Courts is in steep decline, from 100,000 cases three years ago to less than 80,000 now. In 2010 the figure was 117,000. But it’s ok, it has nothing to do with a chronic lack of resources.

A chronic lack of resources is however the reason Max Hill QC, the DPP, gives for the CPS’ inability to do anything about appallingly low advocates’ fee levels. Fees were cut in 2012, in the face of opposition from Bar leaders including Max, then Chair of the CBA, and are now lower in many areas than they were 20 years ago. The CPS has been through challenging and damaging financial times since 2010. But the Bar has suffered a disproportionate burden and we enjoy none of the fringe benefits available to CPS employees. An unsolicited advert is hitting senior barristers’ inboxes offering a salary and benefits few of those who prosecute high end work could dream of. The essential message of the advert seems to be, now is the time to leave private practice, we offer flexible working, long paid holidays, lots of support, fantastic benefits including a civil service pension, sick pay and even special leave for hospital appointments. These benefits are all no doubt as they should be for important public service jobs, but it is the chasm in the contrast with how barristers, who front up the cases, work through the night, miss holidays and medical appointments, have no pension, but have the ultimate legal and presentational responsibility, are treated that is the problem. These adverts, coordinated through private recruitment consultants who won’t come cheap, seem to indicate that there are resources becoming available, just not for us. Many of you who have read the advert are angry, unsurprisingly.

CASES FIXED FOR TRIAL ARE PUT BACK MONTHS WITH NO WARNING:

There has been a sudden spike in the number of fixtures which are being put back by several months without warning. Blackfriars seems particularly affected. A 3 week trial fixed for 7th January was put back to 13th May, another trial fixed for 21st January was moved to 10th June, and counsel in another trial, this time fixed for 4th February for 4-5 weeks is looking for a new slot in the autumn. At the Old Bailey a lengthy retrial fixed for 7th January was split in two and kicked off to May and June. The reason given each time is a lack of available Judges.

This goes beyond the inevitable vicissitudes of practice. The impact on the barristers affected by these trials being moved is dreadful (to say nothing of the defendants, victims and witnesses). Their professional and personal lives will have been organised around these trials, financial assumptions will have been made. Childcare arrangements and holiday plans will now be up in the air.

Will these diary gaps be filled? Very unlikely. It is being said that there is currently an embargo on courts using Recorders. Today’s list at Blackfriars shows 4 courts empty and no Recorders sitting. No Recorders are sitting in Liverpool, Manchester, or Nottingham. There are two Recorders in Snaresbrook today, it’s true, but 5 of the 20 courtrooms are ‘not sitting’. Could this possibly be linked to a chronic lack of resources? Justice seems to have been given the rest of the year off.

WELLBEING:

There are a couple of ongoing issues which have been brought to my attention. They both feature an astonishing disregard for the wellbeing of counsel. The squeeze on the courts and the pressure on Judges to do more with less is unsustainable. Sir Andrew McFarlane, the President of the Family Division, recently made extremely honest comments about the implications of a similar crisis currently engulfing the Family courts.

Very soon we will be making decisions about what change is needed and what we might have to do to secure it.

For now I will simply pose the following questions. Should sitting days in a trial ever begin at 9.30 everyday of the week and end at 5.00 on a Friday? How easy is it for us to take our children, or ourselves, to medical appointments, or the dentist? Do we even feel able to ask? How many of us regularly miss our children’s important school events, or other family milestones? How many booked holidays have not been taken? How often do courts refuse to make very modest adjustments to fix trials or hearings on dates or at times which would make our lives more bearable. (There are very honourable and shining exceptions). This and the collapse in fees and volumes is driving many of us to despair, dire financial straits and out of the profession. Which brings me to………

WESTERN CIRCUIT WOMEN’S FORUM – ‘Back to the Bar: A survey of obstacles, aids, and recommendations, for parents returning to the Bar’:

This report should be read by every single Head of Chambers, Senior Clerk, Judge, Minister and Senior Civil Servant. Read it here.

It should change our professional world. It brings together the shocking fragments of publicly funded practice in one place: low and unpredictable pay, shoddy and inflexible listing practices, unreasonable demands to work late into the night, high stress levels, distant travel at little notice, unpredictable hours, high costs of child care, uncertain career progression, limited personal support. But one headline finding is devastating. Over the 6 year period examined by this survey, two thirds of those who left the Bar were women, and they left mid-career because it was impossible to balance work and family commitments. On the other hand, the men who left either did so to become Judges or because they were retiring.

This is why our campaigns on fees (prosecution and defence), on e-mails, on sitting hours, on bullying, are in fact campaigns about wellbeing and diversity, and the very future of the profession. And yes it bloody well is about resources.

NEWCASTLE MEETING:

What a fantastic place Trinity Chambers is! Caroline and I received a very warm welcome last Tuesday. The Bar in the North is just as angry as everywhere else we have held meetings. The injustice felt in the assessment and level of prosecution fees is reaching boiling point. The collapse in fees for serious defence work threatens our future. The CBA visits Birmingham this week, Cardiff and Bristol next week.